Common law already in place

I REFER to the report “Time to Malaysianise common law system” by Dr Wan Azhar Wan Ahmad (The Star, Sept 18).

Like all others who advocate the replacement of the English common law, Dr Wan Azhar has laboured under a serious misconception that we have to establish and develop the Malaysian common law when, in fact, the Malaysian common law has been actively evolving and developing since Merdeka. It is actually a non-issue.

The former Lord President, Sultan Azlan Shah, acknowledges this. Writing in 2004 (Constitutional Monarchy, Rule of Law and Good Governance, pp. 188-189), Sultan Azlan Shah wrote that it is erroneous to say that any reference to the common law in Malaysia especially in the field of commercial transactions means the common law of England.

He added that over the past hundred years or so, through the judicial process, almost every branch of the law in Malaysia has been developed, and that whilst the Malaysian common law may be similar to the English common law, what is applicable is, in fact, the Malaysian common law.

In my view, this situation is akin to us borrowing English words to develop our National Language. As an avid reader of Malay newspapers for many years, I have observed how English words are constantly converted into Bahasa Malaysia to fill the vacuum. Once converted and used, the words become part of the Bahasa Malaysia vocabulary. Thereafter, one does not say such words are in fact the English language.

It follows that our legislature and judges have already developed the Malaysian common law to such an advanced stage that these days local cases are often cited in our courts compared to the early years of our nationhood. It is obviously not a case where our country is devoid of any legal expertise.

Likewise, it is mendacious to describe our legal experts as impotent or they are still colonised when, in fact, we can now actually take pride in the development of the Malaysian common law.

What many take issue, however, is with the late Tan Sri Prof Ahmad Ibrahim’s proposal to develop a new system of common law based on his notion of the basic law of the land – Islam and Malay customs. This is where Dr Wan Azhar and Prof Ahmad Ibrahim have erred because the basic law of the land is the Federal Constitution.

Therefore, to replace the Malaysian common law on this misconceived basis is a separate issue altogether as it is tantamount to substituting the Malaysian syariah law for the Malaysian common law.

A fortiori, to amend the Civil Law Act to allow this will offend the spirit of the Federal Constitution in our multi-racial, multi-religious and multi-cultural society.

In fact, decisions of our judges delivered in the pre-1988 Judicial Crisis were often cited in various Commonwealth jurisdictions, but not any more these days. We were then, like the English, exporting our Malaysian common law!

What we should be aiming at is to improve the administration of justice in this country – the upgrading of our courts to make access to justice speedier, cheaper and more efficient in this information technology age, and ensuring that only the best and most qualified are appointed to dispense justice in our land.

It follows that what is more urgent and vital is to restore international respect for our judgments that form the Malaysian common law.

Good to test the Constitution

New Sunday Times
by Roger Tan

Our constitutional rulers are not mere rubber-stamps. They hold powers of check and balance. Advice given by the Conference of Rulers ‘is highly persuasive and so persuasive that it is incumbent upon the king to follow’ it.

"CONSULT" is currently the most talked-about word among legal circles.

It all started when the Singapore Straits Times reported on Aug 8 that Malaysia’s Conference of Rulers had refused to endorse the candidate submitted for the post of Chief Judge of Malaya, in place of Tan Sri Siti Norma Yaakob who retired on Jan 5.

The interest was heightened by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim’s statement two days later after the swearing-in of eight judicial commissioners that he did not know if the Conference of Rulers had rejected the government’s choice of candidate because it was under the Official Secrets Act.

Fairuz added that the prime minister was the one who made the ultimate decision on the appointment of the Chief Judge of Malaya because the Yang di-Pertuan Agong acted on the prime minister’s advice. He went on to say that under the Federal Constitution, the prime minister would consult the chief justice and the king would, in turn, consult the Conference of Rulers on the selection.

However, he stressed that consultation did not mean one was bound by the views given.

Hence, reference must be made to Article 122B (1) of the Federal Constitution which reads:

"The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers."

In fact, the word "consult" appears 27 times in different grammatical variations in the Constitution. Apart from being consulted in the appointment of His Majesty’s judges, the Conference of Rulers also has to be consulted over the following:

• before any change in policy affecting administrative action under Article 153 is made (in relation to the special position of the Malays and natives of any of the states of Sabah and Sarawak and the legitimate interests of other communities) (Article 38 (5)); and,

• the appointments of the Auditor- General (Article 105 (a)); the Election Commission (Article 114 (1)) and the Education Service Commission (Article 141A (2)).

In 2000, the Court of Appeal ruled that by virtue of Article 122B (1), the prime minister could insist on the appointment of a judge even if the Conference of Rulers did not agree or withheld its views or delayed the giving of its advice to the king.

This ruling came up during the hearing of an appeal from Datuk Seri Anwar Ibrahim, who claimed that when he was the deputy prime minister, he had represented the prime minister at the Conference of Rulers in which the appointment of High Court judge Mokhtar Sidin (as he then was) to the bench of the Court of Appeal was questioned; the Conference of Rulers could not agree with the prime minister’s advice with regard to the appointment. Therefore, Anwar had wanted to disqualify Mokhtar from the quorum of the Court of Appeal hearing his appeal on the grounds that there might be a likelihood of bias on the judge’s part.

Delivering the ruling of the court, then President of the Court of Appeal Tan Sri Lamin Yunus, who sat with Fairuz and Mohktar, said to "consult" did not mean to "consent". He added:

"So in the matter of the appointment of judges, when the Yang di-Pertuan Agong consults the Conference of Rulers, he does not seek its ‘consent’. He merely consults. So when the Conference of Rulers gives its advice, opinion or views, the question is, is the Yang di-Pertuan Agong bound to accept? Clearly he is not. He may consider the advice or opinion given but he is not bound by it. But Article 40 (1A) of the Constitution provides specifically as to whose advice the Yang di-Pertuan Agong must act upon. Clause (1A) of Article 40 reads:

"In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

"Clearly, therefore, the Yang di-Pertuan Agong must act upon the advice of the prime minister. The advice envisaged by Article 40 (1A) is the direct advice given by the recommender and not advice obtained after consultation."

However, there are contrary views, citing various compelling reasons why the king ought to follow the advice of the Conference of Rulers.

They say, firstly, in practice, the advice given by the Conference of Rulers is highly persuasive and so persuasive that it is incumbent upon the king to follow considering that:

• the king is consulting his equals and the consulted are not those subordinate to him unlike in the case of the king appointing a judicial commissioner under Article 122AB. Further, if the king wants to go on leave for more than 15 days other than on a state visit to another country, he must seek the consent of the Conference of Rulers (Article 34 (5)). A fortiori, the king can also be removed by the Conference of Rulers if five or more of its members vote in favour of it. (Para 8, Part III, Schedule III.)

• the Conference of Rulers is an important constitutional body as it is provided in the Constitution that the consent of the Conference of Rulers is required under certain circumstances and before certain laws can be amended. (Articles 2; 33 (5); 34 (5); 38 (4), 159 (5), para 9 Schedule V, para 19 (5) Schedule VIII.)

• it is within the discretion of a ruler to appoint the chief minister of his state — see Article 71; Paragraph 2, Part I of Schedule VIII and more specifically, Article 36 of the Negri Sembilan Constitution and Article 6, Part II of the Pahang Constitution, albeit by convention the ruler will appoint the person of the party which has the majority of seats in the legislature.

Secondly, I am of the humble opinion that the ruling in the Anwar Ibrahim case is not binding on the king. This is not so much because Lamin’s views are merely obiter dicta (statements made by the way which are not legally binding), but rather it is not the opinion of the Federal Court which the king has referred to it pursuant to Article 130.

Further, in an article entitled "The Role of Constitutional Rulers and the Judiciary Revisited" in the book Constitutional Monarchy, Rule of Law and Good Governance, Perak ruler Sultan Azlan Shah responded to Lamin’s obiter dicta as follows:

"Whatever strict legal ‘distinction may exist between ‘consult’ and ‘consent’ (or even ‘advise’), the role played by the Conference of Rulers cannot be diminished by drawing such slight distinction in terminology.

"To say that appointments can be made even if the ‘Conference of Rulers… withholds its views or delays the giving of its advice’ clearly goes against the grain and spirit of the Constitution. The entire process of consultation with the Conference of Rulers cannot simply be relegated to a mere formality.

"Lamin’s statement that in the appointment of judges only the views of the prime minister are important, even if no views are expressed by the Conference (either because it had withheld its views for further consideration, or delayed the giving of its advice), seems to suggest that the prime minister may also dispense with the requirement under the Constitution to seek the views of the chief justice.

"Therefore, in this regard, it is generally difficult to rationalise why a prime minister would not want to consider, or even abide by the views of nine rulers and four governors who constitute the Conference of Rulers. These are independent persons, with vast experiences, and with no vested interest in the nominated candidates. Their duty is to fulfil their constitutional role in ensuring that only the best and most suited candidates are selected for the posts."

Sultan Azlan Shah added that actually, in practice, the prime minister submits the names of the candidates to the Conference of Rulers. The Conference then submits its views to the prime minister before he tenders his advice to the king. Therefore, Sultan Azlan Shah said the views of the Conference of Rulers are, strictly speaking, given to the prime minister who will consider them before making the final recommendation to the king. Only when such a procedure is followed, Sultan Azlan Shah said, can the Conference of Rulers play an effective role in the "advising" process.

Thirdly, if one compares this with the appointment of a judicial commissioner where Article 122AB requires the king to consult the chief justice, one is tempted to ask how often then does the king reject the chief justice’s nominees for the post of a judicial commissioner? Is it a matter of course that the list is accepted by the king? Or is the list, in fact, only submitted to the prime minister? It follows that if the chief justice’s choice is often accepted by the king, then as often it should be that the king should accept the advice of the Conference of Rulers, and that there must exist an even stronger reason if the king wishes to ignore his brother rulers’ choice.

In fact, not all legal obligations are binding from the moral point of view. For example, the law cannot be as asinine to expect the king to appoint, for example, a candidate who is notorious for his bad record of performance or faces serious allegations of misconduct or dishonesty. The consulting and the consulted must act reasonably.

This goes to show that our constitutional rulers are not mere rubber-stamps. They, like the other organs of government, hold checking and balancing powers. It is important that holders of such powers should always attempt to accommodate one another’s views and come to a compromise.

The king is obviously in a dilemma. On the one hand, he must respect the views of his brother rulers who have the power to remove him. On the other, he has to defer to the advice of a democratically elected government.

But, no one should be alarmed apropos of this imbroglio. In my opinion, it is good to test the Constitution from time to time. In this case, I am confident that eventually, our rulers and prime minister will mutually agree in the best interest of our nation and people within the spirit and proper understanding of the Constitution so that the public will be assured that the Malaysian constitutional system with its entrenched checks and balances will continue to serve the nation well.

Board to handle strata title grouses

The Star

PUTRAJAYA: The soon-to-be-formed Strata Titles Board will handle all complaints regarding strata titles.

Natural Resources and Environment Minister Datuk Seri Azmi Khalid has informed the Bar Council that he was in the midst of appointing members to the board.

The council’s conveyance practice committee chairman, Roger Tan, said this was provided for in the amended Strata Titles Act, which came into effect in April.

Tan said condominium owners could take their complaints to the board and its decision would be final.

Fraudulent land transfers rarely occur

New Straits Times

by Jennifer Gomez

• Man dead for 10 years but still ‘signed’ land deal

KUALA LUMPUR: Fraudulent land transfers are rare, according to the deputy director-general of the Land and Mines Department (development and operations), Datuk Mazbar Abu Bakar.

When he was asked to comment on a recent case involving a 2004 land transfer that was supposedly signed for by a trustee who had died in 1997, he said:

"In my personal view, the system in place and the National Land Code offers sufficient protection for property owners."

Mazbar’s comments appear to contradict a statement by the Deputy Internal Security Minister Datuk Johari Baharum in parliament recently that land transfers using forged signatures had been on the increase since 2001.

He said 16 such cases were recorded in 2001, 19 in 2002, 22 in 2003, 32 in 2004, 35 in 2005 and 40 in 2006. There were 16 cases in the first five months of this year.

According to Bar Council conveyancing practice committee chairman Roger Tan, the feedback from his members was that there had been a rise in cases where land titles were forged.

"The computerisation of the land offices has also given rise to mistakes," Tan said.

In recent months, there have been calls for the National Land Code to be amended to protect the rights of property owners.

Man dead for 10 years but still ‘signed’ land deal

HULU KLANG: Abdul Wahid Mat Daso appears to have signed the land transfer documents for three lots of agricultural land in Hulu Klang for RM500,000 in August 2004.

However, the problem, according to a document from Indonesia, is that he had died in 1997.

As such, Mohd Salim Ibrahim, who claims to be the trustee of the land, is disputing the transfer.

Before returning to Indonesia in 1996, Wahid, the original trustee for the land, had taken Salim to the Gombak district office to check if he could appoint Salim as the new trustee.

This was because Wahid did not plan to return to Malaysia.

Salim told the New Straits Times that they also wanted to know if ownership of the land could be transferred because there was a potential buyer at the time.

He said they were informed by the officer-in-charge at the Gombak office that the land could not be transferred as Wahid was only a trustee.

The officer also turned down their request for a change in trusteeship.

Following that, the two men went to a commissioner for oaths and had the trusteeship "transferred" to Salim.

Salim said he was tending his fruit orchard on the land recently when a surveyor arrived and informed him that the 2.4ha plot had been sold.

The value of the land was estimated at RM1.8 million.

The purchaser is believed to have paid for the land by securing a bank loan.

When contacted by the New Straits Times, Gombak assistant district officer Nordin Abdullah said they had an order from the Alor Setar High Court dated April 2003 authorising Wahid, as the trustee, to transfer ownership to the purchaser.

Salim is puzzled by the turn of events as the request for a transfer of the land was turned down by the Gombak office when Wahid was alive.

Asked about this, Nordin said "they received a court order and had proceeded accordingly.

"If there are claims of fraud in the transfer, then the affected party must take his concerns to the court," he said.